不纯正不作为犯先行行为犯罪及其处置的法理分析——兼论交通肇事逃逸致人死亡

Jurisprudence Analysis of the First Action Crime by Non-pure Omission Offender and Its Treatment——Also on Hit-and-run Causing Death

先行行为不仅包括合法行为、违法行为,而且可以是犯罪行为。在先行行为仅为合法行为或者违法行为的场合,固然涉及不到罪数问题,径行针对不作为予以刑法评价即可。而在先行行为构成犯罪的场合,倘若先行行为的具体犯罪并不存在结果加重犯的规定,一律按不作为犯形态处断;倘若先行行为的具体犯罪存在结果加重犯的规定,并且基于“先行行为+自然因素”间断性地造成加重结果,对此可按结果加重犯处置;倘若先行行为构成犯罪,并且基于行为人的“先行行为+一定行动”间断性地造成加重结果,对此应当按照不作为犯形态处断。这一理论规则,也较为合理地诠释了交通肇事逃逸致人死亡的《刑法》规定与相关有权解释。

First actions not only include legal action and illegal action,but also include criminal action.In the situation that first action is only legal action or illegal action,because it does not concern the problem of crime number,we can directly judge it according to criminal law.But in the situation that first action constitutes a crime,if it has not the regulation of outcome aggravation crime to the concrete crime of first action,we can deal with it as omission crime form;if it has the regulation of outcome aggravation crime to it,we can deal with it as outcome aggravation crime based on aggravation outcome which is continuously caused by first action and nature factors;if the first action constitutes a crime,we can deal with it as omission crime form based on aggravation outcome which is continuously caused by first action and certain action of actor.This theoretical rules can also explain the regulations of Criminal Law and correlative authority interpretations about hit-and-run causing death in reason.